Third Degree Films, Inc. v. Does 1 - 178

Filing 54

ORDER TO SHOW CAUSE. Show Cause Response due by 1/9/2013. Signed by Judge Edward M. Chen on 1/2/2013. (emcsec, COURT STAFF) (Filed on 1/2/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 THIRD DEGREE FILMS, INC., 9 Plaintiff, v. 11 For the Northern District of California United States District Court 10 No. C-12-3858 EMC DOES 1-178, 12 ORDER TO SHOW CAUSE Defendants. ___________________________________/ 13 14 Previously, the Court referred Doe 106’s motion to quash and sever to Judge James. See 15 Docket No. 34 (order). Judge James issued an order denying the motion to quash but recommending 16 that this Court grant the motion to sever. With respect to severance, Judge James concluded that 17 joinder was “technically proper under Rule 20(a)” but nevertheless recommended that the motion to 18 sever be granted because of the “risk of inappropriate settlement leverage and Plaintiff’s failure to 19 resolve any of [the] cases on the merits.” Docket No. 45 (R&R at 9). In response, Plaintiff did not 20 file an objection to the recommendation but instead voluntarily dismissed Doe 106.1 See Fed. R. 21 Civ. P. 41(a)(1)(A)(i) (providing that a “plaintiff may dismiss an action without a court order by 22 filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for 23 summary judgment”). 24 25 Because Plaintiff’s actions, if anything, give even greater weight to Judge James’s concerns, the Court hereby issues this order to show cause. More specifically, the Court orders Plaintiff to 26 27 28 1 Subsequently, Plaintiff filed a motion with Judge James, asking her to reconsider her recommendation regarding severance. See Docket No. 52 (motion). The motion to reconsider, however, is technically inappropriate because the motion seeking severance was filed by Doe 106, and Plaintiffs voluntarily dismissed Doe 106 as noted above. 1 show cause why this case should not be severed – more specifically, so that (1) the only defendant in 2 this case will be Doe 1, and (2) the claims against Does 2-178 will be dismissed without prejudice 3 and, if re-filed within 20 days, deemed a continuation of the original action for purposes of the 4 statute of limitations. In its brief, Plaintiff should address both of the following issues: (1) whether it 5 has met the standard for permissive joinder under Federal Rule of Civil Procedure 20(a) (particularly 6 given the number of Doe Defendants and the five-month period during which the alleged 7 infringement took place) and (2) even assuming such, why severance would not be appropriate 8 pursuant to Rule 20(b) (e.g., not only because of the concerns articulated by Judge James but also 9 because, even if there is factual overlap regarding the Doe Defendants’ alleged method of infringement, the crux of the cases, should they proceed to trial, will be the individual factual 11 For the Northern District of California United States District Court 10 assertions of each defendant). See, e.g., New Sensations, Inc. v. Doe, No. 12-3800 JSC, 2012 U.S. 12 Dist. LEXIS 142032 (N.D. Cal. Oct. 1, 2012); Hard Drive Prods. v. Doe, No. C11-03825 HRL, 13 2012 U.S. Dist. LEXIS 45509 (N.D. Cal. Mar. 30, 2012); Hard Drive Productions, Inc. v. Does 14 1-188, 809 F. Supp. 2d 1150, 1163 (N.D. Cal. 2011) (Spero, J.); Boy Racer v. Does, No. C 11-02834 15 LHK (PSG), 2011 U.S. Dist. LEXIS 86746 (N.D. Cal. Aug. 5, 2011). 16 Plaintiff’s response to this order to show cause shall be filed within one week of the date of 17 this order. Until the Court rules on the severance issue, all other proceedings in this case are 18 temporarily stayed. Briefing schedules and/or hearing dates – including for any motion to quash – 19 are temporarily vacated. Plaintiff shall serve this order on all unrepresented Defendants and file a 20 Certificate/Proof of Service with the Court. 21 22 IT IS SO ORDERED. 23 24 Dated: January 2, 2013 25 _________________________ EDWARD M. CHEN United States District Judge 26 27 28 2

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